Same-Sex Marriage May Hinge On Supreme Court

In 2008, California voters passed Proposition 8, making same-sex marriage in the state illegal. Now, legal challenges to that initiative mean it could soon get a ruling from the U.S. Supreme Court.

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Originally published on January 24, 2012 7:27 pm

With New York's legalization of same-sex marriage effectively doubling the number of Americans living in states where gays can marry, gay advocates like to say 2011 was a big year.

It's hard to imagine another doubling this year, but proponents are still hoping to build on last year's success. Same-sex marriage is currently legal in six states plus Washington, D.C., and it may come up for a vote in six more. All the while, legal challenges are pushing the issue closer to getting an opinion from the U.S. Supreme Court.

Marc Solomon of Freedom to Marry says the fact that New York passed gay marriage with bipartisan support bodes well for bills coming up this year in Maryland, New Jersey and Washington state, where even some lawmakers who opposed it a few years ago are now in favor.

That trend could be tested in Washington and Maryland, where voters will almost certainly get the last word on same-sex marriage through a ballot question. New Jersey Gov. Chris Christie said Tuesday that he'd like to see a popular referendum in his state, too. Gay marriage shouldn't be decided, he said, by 121 people in the Capitol.

That could mean good news for opponents, who like to point out that gay marriage only passes when it's imposed by what they refer to as activist judges or out-of-touch lawmakers. It has, after all, lost each of the 31 times it's been put directly to voters.

But Solomon insists that could soon change. This week, Maine advocates will announce whether they'll try to become the first state to enact same-sex marriage through popular referendum.

"We think 2012 is going to be the year that we actually win a state at the ballot and take away, really, our opponents' last good talking point that they have on this matter," Solomon says.

Pastor Bob Emrich begs to differ. He led the fight for Maine's ballot veto of same-sex marriage in 2009.

"Even if they won in Maine," he says, "the score would be, what? Thirty-one to one?"

Besides, Emrich says, if it came to another vote this year, opponents would be even better prepared to defeat it than they were in 2009: They'd refute arguments that opposition is based on bigotry and make their case that gay marriage impinges on religious liberties.

"They try to make everybody feel like, 'Oh, you don't have to do anything that's contrary to your religious beliefs,' " Emrich says, "but it's not true. I mean, there are cases all over the country where that sort of thing is already taking place."

Supporters call that a red herring, saying it's anti-discrimination and public accommodation laws that govern whether same-sex couples can, for example, adopt or rent a social hall — not marriage legislation.

The Game-Changers

That will all be part of the fight in three other states where same-sex marriage is on the agenda this year. Voters in Minnesota and North Carolina will consider a constitutional ban on same-sex marriage, while lawmakers in New Hampshire — a state where same-sex marriage has been legal for two years now — are considering a repeal.

Sarah Warbelow of the Human Rights Campaign says that a repeal would set a nasty precedent — but there is a way for same-sex marriage to lose a battle and still win the war.

"I don't think it's make it or break t," she says. "Winning one of these certainly would be nice, but losing isn't going to stop the change in American opinion."

A game-changer could come in the form of a couple of decisions from the U.S. Supreme Court, which may soon rule on California's Proposition 8 ban on same-sex marriage and on a challenge to the federal Defense of Marriage Act, which binds government to only recognize marriages between a man and a woman.

"Given that we have a Roe v. Wade-type decision, the state fights become even more important because some of the justices don't like to have the law be too far ahead of where the public is," Brown says.

But even a Supreme Court decision is unlikely to end the debate. If the justices find same-sex marriage bans to be unconstitutional, opponents say they'll just redouble their efforts to amend the U.S. Constitution.

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Transcript

ROBERT SIEGEL, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

MELISSA BLOCK, HOST:

And I'm Melissa Block.

Support for gay marriage is growing this week among lawmakers in Washington state and New Jersey. Both could soon vote to join the six other states, and the District of Columbia, where gay marriage is now legal. Gay marriage proposals are also moving forward elsewhere.

But as NPR's Tovia Smith reports that several states are also considering moves to ban it.

TOVIA SMITH, BYLINE: Gay advocates like to say last year was a biggie. When New York legalized same sex marriage, it doubled the number of Americans living in states where gays could marry. It's hard to imagine another doubling this year but advocates are hoping to build on that success.

SMITH: Marc Solomon, with the Freedom to Marry Coalition, says the fact that New York passed gay marriage with bipartisan support bodes well for bills coming up this year in Washington state, Maryland, and New Jersey - where even some lawmakers who opposed gay marriage just a few years ago are now in the support column.

SOLOMON: We're seeing a really dramatic shift. I think the trend – the accelerating trend is very clear.

SMITH: That trend would be tested in Washington and Maryland, since voters there would almost certainly get the last word on gay marriage through a ballot question.

New Jersey Governor Chris Christie today said he'd like to see a popular referendum in New Jersey, too. Gay marriage shouldn't be decided, he says, by 121 people in the capitol.

GOVERNOR CHRIS CHRISTIE: Let's stop treating this like a political football and let's let the people of New Jersey decide. This issue is too big and too consequential not to trust the people who will be governed, ultimately, by any change in law or maintenance of the current law.

SMITH: Opponents like to point out that gay marriage only passes when it's imposed by what they call out of touch lawmakers or activist judges. It has lost each of the 31 times it's been put directly to voters.

But Solomon insists that could soon change in Maine, where advocates will announce this week whether they'll try to become the first state in the nation to enact gay marriage through a popular referendum.

SOLOMON: We think 2012 is going to be year that we actually win a state at the ballot and take away, really, our opponent's last good talking point that they have on this matter.

SMITH: Well, maybe.

PASTOR BOB EMRICH: I mean , even if they won in Maine, the score would be, what, 31-to-1.

(SOUNDBITE OF LAUGHTER)

SMITH: Pastor Bob Emrich, who led the fight against the Maine ballot question in 2009, says opponents would be even better prepared to defeat it again this year by refuting arguments that opposition is based on bigotry and, Emrich says, by making their case that gay marriage impinges on religious liberties.

EMRICH: They try to make everybody feel like, oh, you don't have to do anything that's contrary to your religious beliefs. But it's not true. I mean, there are cases all over country where that sort of thing is already taking place.

SMITH: Supporters call that a red herring, saying it's anti-discrimination and public accommodation laws, not gay marriage that govern whether gay couples, for example, can adopt or rent a social hall.

But expect that to be part of the fight in three other states where gay marriage is also on the agenda. Voters in Minnesota and North Carolina will consider a constitutional ban on gay marriage. And in New Hampshire, where same-sex marriage has been legal for two years, lawmakers are now considering a repeal.

As Sarah Warbelow, of the Human Rights Campaign puts it: That would set a nasty precedent. But she says gay marriage could lose a battle and still win the war.

SARAH WARBELOW: I don't think it's make it or break it. Winning one of these certainly would be nice, but losing isn't going to stop the change in American opinion.

SMITH: A game changer could come from the U.S. Supreme Court, which may soon rule on California's Proposition 8, banning gay marriage, and on a challenge to the federal Defense of Marriage Act.

Brian Brown, of the National Organization for Marriage, says what states do now could influence the Court.

BRIAN BROWN: Given that we have a Roe versus Wade-type decision, these state fights become even more important because some of the justices don't like to have the law be too far ahead of where the public is.

SMITH: Even a Supreme Court decision however is unlikely to end the debate. If the justices find same-sex marriage bans unconstitutional, opponents say they'll just redouble their efforts to amend the U.S. Constitution.